The High Court declared that a prison disciplinary hearing breached the Prison Rules because a prisoner was not given an opportunity to make a plea in mitigation before a sanction was imposed. It did not quash the finding or sanction, and said it could not decide whether further relief was justified until it had more information about the prisoner’s petition to the Minister for Justice.
The judicial review concerned a disciplinary hearing at Wheatfield Prison following a visit on 13 June 2014. The prisoner admitted receiving a piece of paper from his brother, which he said was a money docket. Prison authorities alleged that an article had been passed to him concealed in paper. He said he had permission to receive the docket, or that it was not prohibited. Two searches found nothing.
At the hearing on 29 June 2014, CCTV footage was played. The Assistant Governor found a breach of discipline for receiving an article without permission and imposed 40 days’ loss of privileges. The prisoner argued that he had raised permission as a defence and that the hearing should have called Acting Assistant Chief Officer O’Shea. The Assistant Governor said the prisoner had not raised permission or asked for the officer to attend.
Justice Baker found that the prisoner had defended himself against the allegation of a concealed item by saying he had received only a money docket. She concluded that he had not shown that he raised consent at the hearing, so the claim that the authorities unfairly failed to call the officer was rejected. The court also held that the prison rule covered receipt of any item transmitted by a visitor without permission, regardless of whether the item itself came from outside the prison. The evidence, including the CCTV and the prisoner’s admission that he received the paper, was sufficient for the Assistant Governor’s decision under that interpretation.
The court separately found that the hearing notes did not show that the prisoner was offered a chance to argue in mitigation. Rule 67(11) entitles a prisoner to make such a plea before a penalty is imposed. The court declared that this rule had been breached, but said that breach did not by itself make the finding or sanction unlawful. The prisoner had petitioned the Minister about the sanction, but the court had no evidence about the petition’s progress or any remedy it might provide. The court said it would hear counsel on whether a further declaration was warranted.